PUBLISH
UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ U NITED STATES OF AMERICA, Plaintiff - Appellee,

v . IRA LEE WILKINS, Defend ant - Appellant. No. 19-5114

________________ _________________ Appeal from the United States District Court for the Northern Dist rict of Oklahoma (D.C. No. 4:19- CR-00116-JED-1)

________________ _________________ Shira Kieval, Assistant Fe deral Public Defender, an d Virginia L. Grady, Federal Public Defender, Denver, Colorado, for the Defendant-Appellant. Clinton J. Johnson, Acting United States Attorney, and Leena Alam, Assistant United States Attorney, Tulsa, Oklahoma, for the PlaintiffAppellee.

________________ _________________ Before BACHARACH , BRISCOE , and MURPHY , Circuit Judges.

________________ _________________ BACHARACH , Circuit Judge.

________________ _________________ This case arises out of Mr. Ira Lee Wilkins’s senten ce for unlawfully possessing a firearm. See 18 U.S.C. § 922(g)(1). In deciding the sentence, the district court considered the effect of Mr. Wilkins’s prior conviction in FILED United States Court of Appeals Tenth Circuit 

### April 15, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 12 Texas for aggravated robbery. The district cour t characterized this offense as a “crime of violence” under the sentencing guidelines, which increased the base-offense level. U.S.S.G. §§ 2K2.1(a)(4)(A) & (6). Mr. Wilkins appeals, arguing for the first time that the district court shouldn’t have considered aggravated robber y as a crime of violence. 1 We affirm.
I. To determine whether aggravated robbery in Texas constitutes a crime of violence, we must dete rmine the applic able approach. To determine whether a prior offens e constitutes a crime of violence, we apply either the categorical appr oach or the modified categorical approach. United States v. Kendall , 876 F.3d 1264, 1267–68 (10th Cir. 2017).
A. Categorical Approach Under the categorical approach, we compare the underlying state statute to the guide lines’ definition of a “crime of violence.” Id. at 1267

. If the statute sweeps beyond the guidelines’ defi nition of a “crime of

1 After we affirmed th e sentence, Mr. Wilkins raised a new issue in the United States Supreme Court, urging reconsideration based on Borden v. United States , 141 S. Ct. 1817 (2021). Th ere the Supreme Court had concluded that a criminal offense with a mens rea of recklessness could not constitute a violent felony under the Armed Career Criminal Act. Id. at 1834. The Supreme Court granted the re quest, remanding for consideration of Borden . We have applied Borden to the sentencing guidelines, holding that a crime of violence under the sentenci ng guidelines requires a mens rea greater than recklessness. United States v. Ash , 7 F.4th 962, 963 (10th Cir. 2021). Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 23 violence,” we wouldn’t consider the offense a crime of violence. Id. at
1267–68. We start with how Texas defines aggravated robbery. Under Texas law, a person commits aggravated robbery if “he commits robbery as defined in Section 29.02, and he (1) causes serious bodily in jury to another; (2) uses or exhibits a deadly weapon; or (3) causes bodily inju ry to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is: (A) 65 years of age or older; or (B) a disabled person.” Tex. Penal Code § 29.03(a). This definition turns on the meaning of “robbery.” A person commits robbery under § 29.02 “if, in the course of comm itting theft . . . and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or reck lessly causes bod ily injury to another; or (2) intentionally or knowingly threat ens or places another in fear of imminent bodily in jury or death.” Tex. Penal Code § 29.02(a). We compare this definiti on of aggravated robbe ry to the guidelines’ definition of a “crime of violence.” The applicable guid eline provision, § 4B1.2(a)(1), defines a “crime of violen ce” as a state fel ony that “has as Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 34 an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). 2 So we must decide whether Texas’s offense of aggravated robbery ne cessarily contains an element of using, attemp ting to use, or threaten ing to use physical force against “the pers on of another.” Id.
B. Modified Categoric al Approach The parties agree that Texas’s statutes for robbery and aggravated robbery cover some conduct that wouldn’t f it the applicable definition of a “crime of violence. ” But the governmen t argues that

 the Texas statutes create separate offenses and

 Mr. Wilkins’s conviction involv es only the offense that constitutes a “crime of violence.” So we must decide whethe r the Texas statutes refer to different crimes or just different ways of committing a single crime. We call this inquiry “divisibility.” United States v. Titties , 852 F.3d 1257, 1266 (10th Cir. 2017).

2 The guidelines contai n a separate definition th at treats “robbery” as one of the crimes cons tituting a “crime of violence.” U.S.S.G. § 4B1.2(a)(2). Under this part of the definition, a Texas robbery counts only if it fits the generic definition of a robbery. See United States v. O’Connor , 874 F.3d 1147, 1154 ( 10th Cir. 2017) (concl uding that robbery under the Hobbs Act, which requires the use or threat of force against property, does not qu alify as generic robb ery and extends beyond § 4B1.2(a)(2)). The government doe s not characterize Mr. Wilkins’s offense as a generic robbery, so this definition does not apply. Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 45 A statute is “divisible,” creating multiple crimes, when the statute
“sets out one or more elements of the offense in the alternative.” Descamps v. United States , 570 U.S. 254, 257 (2013) (emphasis added). But disjunctively listed statut ory components do not au tomatically qualify as elements. United States v. Titties , 852 F.3d 1257, 1267 (10th Cir. 2017). When the statute merely lists “various factual ways of committing some component of the offense,” the stat utory components are considered means rather than elements

. Id. (internal quotation mark s & citation omitted). A statute is divisible only when it lists “multiple, alternative el ements, and so effectively creat es several different . . . crimes.” Id. (internal quotation marks & citation omitted). If the statute is divisibl e, creating multiple crimes, the district court applies the modified categorical appr oach to determine which crime was committed. Id. To make that determination, the court consults a limited class of record documents. Id. at 1266. Once the court determines which crime the defendant committed, the co urt compares the el ements of that crime to the guidelin es’ definition of a “crime of violence.” Id. Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 56 II. It would not have been an obviou s error for the district court to classify the Texas robb ery statute as divisibl e, creating multiple crimes. At issue is the divisibility of th e Texas robbery statute, § 29.02(a). 3
See p. 3, above. Subsection “1” requires on ly recklessness; Subsection “2” requires either intentiona l or knowing conduct. So ou r threshold task is to decide whether these stat utory components refer to elements (reflecting two separate crimes) or means (different ways of committing the same offense). Under the plain-error stan dard, Mr. Wilkins doesn’t show an obvious error in considering the statutory components as elements.
A. We apply the plain-error standard, preventing reversal unless the alleged error is obvious. If Mr. Wilkins had preserved the is sue, the government would need to establish that

 the Texas robbery statute contai ns two sets of elements and

 Mr. Wilkins’s conviction is a “crime of violence” under the guidelines because the elements re quire the use, a ttempt to use, or threat to use physical fo rce against another person.

3 Mr. Wilkins also argues that th e aggravator at i ssue—§ 29.03(a)(2) (“using or exhibiting a deadly wea pon”)—does not qualif y as a crime of violence because reckless ness would suffice. Bu t aggravated robbery contains two elements: (1) a robb ery under § 29.02(a) and (2) an aggravator under § 29.03(a) . To show that aggrav ated robbery is not a crime of violence, Mr. Wilkins needed to establish that both the robbery and the aggravator require a mens re a of only reckless ness. Because we ultimately conclude that Mr. Wilkins’s robbery offe nse requires a mens rea greater than recklessne ss, we need not addre ss his argument about the aggravator. Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 67 See United States v. Degeare , 884 F.3d 1241, 1245 (10th Cir. 2018). But in district court, Mr. Wilkins did not cha llenge classification of aggravated robbery as a crime of vi olence. So we appl y the plain-error standard. See United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005) (en banc). Unde r this standard, Mr. Wilk ins must show an error that is plain, affects su bstantial rights, and seriou sly affects the fairness, integrity, or public reputation of judicial proceedings. Id. Ordinarily, a statute is indivisible unless we can tell with certainty that the alternative statut ory components constitute elements (rather than means). United States v. Cantu , 964 F.3d 924, 929 (10t h Cir. 2020). This court has not define d the level of certainty requ ired for divisi bility; at a minimum, we must be “ at least more certain than not that a statute’s alternatives constitute elements.” United States v. Degeare , 884 F.3d 1241, 1248 n.1 (10th Cir. 2018) (e mphasis in original). Bu t given the plain-error standard, our ultimate qu estion is whether classi fication of the statutory components as elements would ha ve constituted an obvious error. 4 See pp. 3–4, 6–7, above.

4 Mr. Wilkins argues th at we need not “‘definitively’ conclude that Texas aggravated robbery is indivisibl e.” Appellant’s Supp . Reply Br. at 2. We agree. Under the plain-error standa rd, we don’t requir e a defendant to conclusively prov e indivisibility. See, e.g. , United States v. Cantu , 964 F.3d 924, 935 (10t h Cir. 2020). Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 78 B. The district court could have reasonably considered the statutory components of Texas robbery as elements.
To determine whether the statutor y components constitute elements, we start by considering the pertinent state’s cas elaw, the pattern jury instructions, and the statute itself. See United States v. Cantu , 964 F.3d 924, 928 (10th Cir. 2020) (t he state’s caselaw and the statutory text); Johnson v. Barr , 967 F.3d 1103, 1109 (10th Cir. 2020) (the pattern jury instructions). If those sources show with certainty whether the separate statutory components cons titute elements or m eans, the inquiry ends.
Cantu , 964 F.3d at 928. If the characterization rema ins uncertain, the court can “peek” at the record to determine whether the statutory components constitute elements or means. Id. at 928–29.
1. Pattern Jury Instructions and State Caselaw Texas’s pattern jury instructions suggest that the statutory components are elem ents. But Mr. Wilk ins points to two Texas state-court opinions as proof that the stat utory components are means:

a. Cooper v. State , 430 S.W.3d 426 (T ex. Crim. App. 2014)
b. Burton v. State , 510 S.W.3d 232 (T ex. Ct. App. 2017) These opinions pr ovide little help in char acterizing the statutory components as elements or means. Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 89 a. Texas’s Criminal Pa ttern Jury Charges The state’s pattern jury instructions provide guidance on the content of Texas law. Johnson v. Barr , 967 F.3d 1103, 1109 (10th Cir. 2020); see also Ford Motor Co. v. Ledesma , 242 S.W.3d 32, 45 (Tex. 2007) (“[O]ur trial courts routinely re ly on the Pattern Jury Charges in submitting cases to juries, and we rarely disapprove of these charges.”). That guidance is particularly helpful here because

 Mr. Wilkins pleaded guilty and

 the record contained no case–sp ecific jury instructions. See United States v. Titties , 852 F.3d 1257, 1270 n.15 (10th Cir. 2017) (considering the state’s pa ttern jury instructions in similar circumstances). In Texas, the pattern jury instructions differ for the two subsections of the robbery statute. Compare Tex. Crim. Pattern Jury Charges § 87.2 (Robbery by Threats), with Tex. Crim. Pattern Ju ry Charge s § 87.1 (Robbery Bodily Injury). Those diffe rences “suggest[] that robbery by threat and robbery by bodily injury are separate crim es within one statute.” Martin v. Kline , No. 19-15605, 2021 WL 6102175, at *1 (9th Cir. Dec. 22, 2021) (unpublished); see also United States v. Leaverton , 895 F.3d 1251, 1255 (10th Cir. 2018) (basin g divisibility in part on the uniform jury instructions’ indication that the stat utory components require proof of different elements). So the patte rn jury instru ctions support characterization of the statut ory components as elements. Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 910 b. Cooper v. State Despite the pattern jury instru ctions, Mr. Wilkins points to Cooper v.
State , 430 S.W.3d 426 (Tex. Crim. App. 2014). But there a majority of the court didn’t agree on whether the statutory components constituted elements or means.
In Cooper , Texas’s highest criminal court found a double jeopardy violation when the defendant had been convicted of both “aggravated robbery by causing bodily injury” and “aggrava ted robbery by threat.” Id. at 427. Five out of eight participat ing judges joined the majority. Two judges in the majo rity wrote concurre nces, each joined by another judge in the majority. Both co ncurrences agreed that “the ‘threat’ and ‘bodily’ injury elements of robb ery [were] simply alternative methods of committing a robbery.” Id. at 434 (Keller, P.J., concurring); id. at 439 (Cochran, J., concurring). Mr. Wilkins thus argues that the concurrences definitively treat the a lternative phrases in the Texas robbery statute as means rather than elements. But the cited statements come from the concurrences, not the majority opinion. The concurrences in cluded only a plur ality (four of the eight judges). A nd under Texas law, the plur ality does not constitute binding authority. See Univ. of Tex. Med. Branch v. York , 871 S.W.2d 175, 176–77 (Tex. 1994) (concluding that a prior plurality opinion didn’t Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 1011 constitute authority for fu ture cases when “a majority of th e sitting court” had not agreed on the principles of law). Mr. Wilkins argues that the cite d statements garnered a court majority because

 the four concurring judges had joined the majority and

 a fifth judge in the majority had not expressed disagreement. But we cannot read the fi fth judge’s silence as implicitly adopting the reasoning of the concurrences. See Sands v. State , 64 S.W.3d 488, 494–95 (Tex. Ct. App. 2001) (concl uding that a prior conc urrence didn’t reflect a majority of the court when three ju stices would reach the same outcome but didn’t join the majority’s reasonin g). After all, the fifth judge in the majority could have incor porated this position if he had agreed with the

concurrences. Mr. Wilkins argues that even if the concurrences do not bind us, they show that the double-jeop ardy question turned on classification as elements or means. In support, Mr. Wilkins ob serves that

 the dissenting judges in Cooper found no violation of double jeopardy, reasoning that robbery-by-inj ury and robbery-bythreat are differen t offenses and

 Cooper overruled an opinion addr essing classification of robbery-by-threat and robbery-by-a ssault as means or elements. Granted, we have co nsulted double-jeopardy cases when deciding divisibility. See, e.g. , United States v. Cantu , 964 F.3d 924, 930 (10th Cir. Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 1112 2020); United States v. McKibbon , 878 F.3d 967, 975 (1 0th Cir. 2017). But when we’ve considered doubl e-jeopardy cases, their reasoning has clarified the characterization as elements or means. For example, we relied on a state-court opinion to find indivisi bility because the court had found a legislative intent “to create a single , unitary offense” in enacting the pertinent statute. United States v. McKibbon , 878 F.3d 967, 975 (10th Cir. 2017) (internal quotation marks & citation omitte d). Similarly, we interpreted an opinion to support indivisi bility when the state court had recognized that two counts addressed a single offense and shared the same elements. United States v. Cantu , 964 F.3d 924, 930 (1 0th Cir. 2020). In contrast, the majority opinion in Cooper noted in a single sentence, without any explanation, that the court had found a doublejeopardy violation, saying only that the court had “review[ed] the opinion of the court of appeals, the record , and the briefs of the parties.” Cooper v.
State , 430 S.W.3d 426, 427 (Tex. Crim. App. 2014) (majority opinion). Without an explanation for this finding, we have little to help us classify the statutory components as elements or means. So the district court wouldn’t have committed an obvious error under Cooper by declining to treat the statutory com ponents as means. Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 1213 c. Burton v. State
Mr. Wilkins also relies on Burton v. State , 510 S.W.3d 232 (Tex. Ct. App. 2017). But Burton didn’t expressly address cl assification as elements

or means. In Burton , an intermediate ap pellate court found no violation of the defendant’s right to a unanimous verdict when the jury could infer aggravated robbery from either a bodily injury or threat. Id. at 237. The
Burton court ultimately held that “causin g bodily injury or threatening the victim [were] different methods of committing the same [aggravated robbery] offense.” Id. (emphasis added). But what did the court mean by methods ? The court did not say, leaving it “unclear whether the [ Burton ] court was referring to the elements of a crime, th e means of satisfying a single element, or the crimes set fo rth by a statute unde r a [divisibility] analysis.” United States v. Lerma , 877 F.3d 628, 634 n. 4 (5th Cir. 2017). Despite this lack of clarity in Burton , Mr. Wilkins interprets the court’s use of the term methods as synonymous with means . This interpretation is possible, but not defi nitive, for courts sometimes use the

term methods when referring to alternative st atutory components that could consist of either el ements or means. See, e.g. , United States v. Harris , 950 F.3d 1015, 1017 (8th Cir. 2020) (“If the stat ute lists alternative methods of committing the offense, we must determine whet her the statute lists alternative elements that define separate crim es and must be found by a Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 1314 jury or whether the statute merely ‘specifies various means of fulfilling the crime’s elements.’” (quoting United States v. Doyal , 894 F.3d 974, 975 (8th Cir. 2018) (emp hasis added))). Mr. Wilkins also characterizes th e statutory components of Texas robbery as means because Burton did not require ju ry unanimity on whether the defendant ha d committed robbery by threat or by injury.
Burton v. State , 510 S.W.3d 232, 236 (Tex. App. 2017); see also United States v. Degeare , 884 F.3d 1241, 1249–50 ( 10th Cir. 2018) (basing indivisibility on a jury’s ability to find guilt despite inte rnal disagreement among the jury). But if Mr. Wilkins we re right, we would have an internal conflict among Texas’s inte rmediate appellate courts . In an earlie r opinion, Woodard v. State , for example, the Texas Court of Appeals had held that the robbery statute “provide[d] two separate, underlying robbery offenses—robbery causing bodily injury and robb ery by threat.” 294 S.W.3d 605, 608 (Tex . Ct. App. 2009).
In Burton , the court didn’t address—much less overrule— Woodard ’s characterization of the tw o statutory components as separate offenses. 5 So

5 The Burton court did refer to Woodard in a footnote. But that reference addressed only Woodard ’s consideration of the aggravating factors of aggravated robbery, stating that they involved “simply descriptions or means by which the underlying offense of robbery causing bodily injury can be committed.” Burton v. State , 510 S.W.3d 232, 237 n.4 (Tex. Ct. App. 2017) (citing Woodard v. State , 294 S.W.3d 605, 609 (Tex. Ct. App. 2009)). Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 1415 the district court wouldn’t have committed an obvious error by d eclining to characterize the statutory co mponents as means based on Burton

. * * * The cited state-court opinions thus do not resolve the issue of divisibility.
2. Statutory Text Besides the pattern jury instructions and case law, we also consider the statute itself. The alte rnative statutory components, listed in separate numbered paragraphs, 6 involve not only different conduct but also different elements. “The inclusion of different sets of mens rea elements is strong evidence that the Te xas robbery statute is divisi ble,” involving a difference in elements rather than means. Martin v. Kline , No. 19-15605, 2021 WL 6102175, at *1 (9th Cir. Dec. 22, 2021) (unpublished); see also United
States v. Garrett , 24 F.4th 485, 489 (5th Cir. 2022) (reasoni ng that the statutory components in Te xas’s robbery statute cons titute elements in part

6 Granted, we have held that this factor alone woul d not show with certainty that the statutory components constitute elements. United States v. Degeare , 884 F.3d 1241, 1253 (10th Cir. 2018). But we can consider this factor as one of the st atutory characteristics to determine whether the statutory components constitu te elements or means. Mr. Wilkins points out that th e Supreme Court hasn’t listed the existence of separate subs ections as a factor sugges ting divisibility. But we often consider factors be yond those that the Suprem e Court has considered. See, e.g. , United States v. Hamilton , 889 F.3d 688, 696 (1 0th Cir. 2018). Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 1516 because of the different mental stat es for robbery-by-in jury and robberyby-threat). We can also consider analogous state statutes in determining divisibility. See, e.g. , Johnson v. Barr , 967 F.3d 1103, 1109 (10th Cir. 2020). For example, Texas’s assault stat ute contains three subdivisions in separate paragraphs, divided by se micolons. Each paragraph describes different behavior and mens rea. See Tex. Penal Code § 22.01. 7 These subdivisions, according to the Texas Court of Criminal Appeals, describe “three distinct criminal offenses.” Landrian v. State , 268 S.W.3d 532, 540 (Tex. Crim. App. 2008). Th e court thus explained th at “aggravated assault by causing bodily injury” and “aggrav ated assault by th reat” were two separate crimes: “The first is a result -oriented offense and the second is a conduct-oriented offense.” Id. ; see also United States v. Garrett , 24 F.4th

7 In Texas, a person comm its assault “if the person: (1) intentionally, knowingly, or reck lessly causes bod ily injury to another, including th e person’s spouse; (2) intentionally or knowingly thre atens another with imminent bodily injury, including the person’s spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reas onably believe that the other will regard the contact as offensive or provocative.” Tex. Penal Code Ann. § 22.01. Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 1617 485, 489 (5th Cir. 2022) (“ The Texas simple robber y statute creates two distinct crimes, robbery-by-inj ury and robbery-by-threat.”). Mr. Wilkins points out that the tw o statutory components trigger the same punishments. The presence of the same pun ishment suggests characterization as me ans, but that sugges tion isn’t dispositive. United States v. Bouziden , 725 F. App’x 653, 657 (1 0th Cir. 2018) (unpublished). 8
3. Record Documents When uncertainty remains after considering the pattern jury instructions, state caselaw, and the stat e statute itself, we can “peek” at the record documents to determine whether the ite ms listed in the statute are elements or means. Mathis v. Un ited States , 136 S. Ct. 2243, 2256–57 (2016) (quoting Rendon v. Holder , 782 F.3d 466, 473–474 (9th Cir. 2015) (Kozinsky, J., dissenting)). 9 Mr. Wilkins argues th at the record support s characterization as means because the state co urt did not call the char ge against Mr. Wilkins “anything but ‘aggravated robbery’” or cite a sp ecific subsection of the robbery statute. Appellant’s Supp. Repl y Br. at 4 n.1. For this argument, Mr. Wilkins cites multiple orders deferring adjudication.

8 Bouziden is persuasive but not precedential. See 10th Cir. R. 32.1(A).

9 Mr. Wilkins attaches the releva nt documents to his supplemental brief and requests judicial notice of these documents. See Fed. R. Evid. 201(b), (c)(2), (d). We grant his request. Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 1718 But in “peeking” at the record to determine divisibility, we consider only “conclusive reco rds made or used in adjudi cating guilt,” such as the charging document, jury instructions, and plea agreement. United States v. Abeyta , 877 F.3d 935, 942 (10t h Cir. 2017) (quoting Shepard v. United
States , 544 U.S. 13, 21 (2005)) . Orders deferring adj udication do not help us on divisibility. See id. (declining to “peek” at the docket sheet because it falls short of being a “‘conclusive r ecord[] made or used in adjudicating guilt’”). In the indictment, only the first paragraph sets out a charge of aggravated robbery. This paragraph includes

 one subsection of robbery (“ intentionally or knowingly threaten[ing] or plac[ing] another in fear of imminent bodily injury or death”), § 29.02(a)(2), and

 one aggravator (“us[ing] and po ssess[ing] a deadly weapon”), § 29.03(a)(2). In four additional paragraphs, the in dictment states how Mr. Wilkins had committed robbery by “int entionally, knowingly a nd recklessly” causing bodily injury to the victim under § 29.02(a)(1), but not “serious” bodily injury—an aggravator under § 29.03(a)(1). True Bill of Indictment, No. 219-81050-99 (Collin Cnty., Texas Dist. Ct. Nov. 10, 1999). And none of these paragraphs refer to any additi onal aggravators under § 29.03(a). See Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 1819 id. 10 Because the indictment includes only one charge of aggravated robbery and that charge refers only to one statutory component of Texas robbery under § 29.02(a), we can infer that the statute contains a list of elements rather than means. Mathis v. United States , 136 S. Ct. 2243, 2257 (2016). Mr. Wilkins’s guilty plea also suppo rts characterization as elements. See United States v. Adkins , 883 F.3d 1207, 1215 (9th Cir. 2018) (concluding that a plea agreement shows that the statutory elements constitute different elements rath er than means). When Mr. Wilkins pleaded guilty, he admitted only the conduct allege d in the first paragraph of the indictment, the part charging ag gravated robbery: “I . . . did then and there intentionally and knowingly, while in the course of committing theft of property and with intent to obtain and maintain control of said property, threaten and pla ce [the victim] in fear of imminent bodily injury and death, and used and exhibited a deadly weapon, na mely: a firearm.” Stipulation of Facts, State v. Wilkins , No. 219-81050-99 (Collin Cnty., Texas Dist. Ct. Dec. 9, 1999 ). This admission refers only to one part of the statute on aggravated robbery.

10 The indictment also includes one paragraph on criminal attempt, alleging that Mr. Wilk ins committed aggravated robbery a nd robbery through acts “amounting to more than mere prepar ation that tend[ed] but fail[ed] to effect the commission of offense intended.” Tex. Penal Code § 15.01(a). Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 1920 The indictment and stipulation ar guably leave some uncertainty on divisibility. For example, the indict ment includes mul tiple paragraphs under the heading “aggrav ated robbery” without explaining whether the charge relates to on e crime or multiple crimes. Judges could thus differ in how they interpret their peeks at the state-court records. But the mere existence of uncertainty and reasonable disagreement does not mean that characterization as elements would ha ve constituted an obvious mistake.
C. Two other circuits ha ve ruled that the statutory components of Texas robbery constitute el ements, and we are reluctant to create a circuit split. Our court hasn’t addressed the divi sibility of the Texas statute on robbery or aggravated robbery. But the Fifth and Ninth Circuits have addressed the divisibility of Texas robbery, and both have treated the statutory components as elements. See United States v. Garrett , 24 F.4th 485, 489 (5th Cir. 2022); Martin v. Kline , No. 19-15605, 2021 WL 6102175, at *1 (9th Cir. D ec. 22, 2021) (unpublished); United States v. Wehmhoefer , 835 F. App’x 208 , 211–12 (9th Cir. 2020) (unpublished). Granted, these opinions aren’t bi nding on a question of Texas law. See United States v. Faulkner , 950 F.3d 670, 674 n.5 (1 0th Cir. 2019) (“[O]ur divisibility inqu iry looks to state, not federa l, court decisions.”). But one of the two circuits to address the is sue was the Fifth Circuit. And several other circuits ordinarily defer to a federal circuit court’s interpretation of state law when the circu it includes that state. See Whitewater W. Indus., Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 2021 Ltd. v. Alleshouse , 981 F.3d 1045, 1051 (Fed. Cir. 2020); In re Dow Corning Corp. , 778 F.3d 545, 549 (6th Cir. 2015); Desiano v.WarnerLambert & Co. , 467 F.3d 85, 90 (2d Cir. 2006), aff’d sub nom. , WarnerLambert Co., LLC v. Kent , 552 U.S. 440 (2008); Dawn Equip. Co. v. Micro-Trak Sys., Inc. , 186 F.3d 981 , 989 n.3 (7th Cir. 1999); Charter Oil Co. v. Am. Employ ers’ Ins. Co. , 69 F.3d 1160, 1164 (D.C. Cir. 1995). 11 For example, the Sixth Circuit expressly st ated that it would defer to the Fifth Circuit in interpreting Te xas law on divisibility. See United States v.
Cavazos , 950 F.3d 329, 335 & n. 2 (6th Cir. 2020). Even without such deference, we ar e ordinarily relu ctant to create a circuit split without a “sound reason.” United States v. Thomas , 939 F.3d 1121, 1130–31 (10th Cir. 2019) (quoting Anderson v. Private Cap. Grp. , 549 F. App’x 715, 718 (10th Cir. 2013) (unpublished)). Because Mr. Wilkins presents no compelling basis to create a circuit split based on the pattern jury instructions, the state casel aw, the state statut e, or the record documents, we lack a sound reason to reject the other circuit courts’ characterization of the st atutory components as el ements. Under the plain11 The Supreme Court takes a similar approach. Elk Grove Unified Sch. Dist. v. Newdow , 542 U.S. 1, 16 (2004 ) (“Our custom on questions of state law ordinarily is to defer to the inte rpretation of the C ourt of Appeals for the Circuit in which th e State is located.”), abrogated in pa rt on other grounds , Lexmark Intern., Inc. v. Static Control Components , 572 U.S. 118, 127 (2014). Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 2122 error standard, we thus conclude that the district court wouldn’t have committed an obvious error by characterizing the st atutory components as elements.
III. Under the modified categorical approach, Mr. Wilkins was convicted of a cri me of violence. Because the district court would not have obviously erred by considering the statutory compon ents as elements, we must

 apply the modified categorial approach and

 consider which crime was committed. In pleading guilty, Mr. Wilkins stipul ated to facts matc hing the crime of intentionally or knowingl y threatening or putting another in fear of imminent bodily injury or death (usi ng or exhibiting a deadly weapon). Tex. Penal Code § 29.02(a)(2), § 29.03(a)(2). And Mr. Wilkins does not deny that this offense would const itute a crime of violence under the sentencing guidelines.
IV. Conclusion If an error exists, it would not ha ve been obvious. For an obvious error on divisibility, th e defendant need not identify a prece dent or state case addressing the same statute. See United States v. Cantu , 964 F.3d 924, 935 (10th Cir. 2020 ) (precedent); United States v. Titties , 852 F.3d 1257, 1272 n.19 (10th Cir. 2017) (state cas e). But merely pointing to an uncertainty wouldn’t satisfy the plain-error standa rd. Two circuit courts Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 2223 have concluded that the Texas robbery statute identifies two separate crimes, and one of those circuits sometimes obtains deference when applying Texas law. See pp. 19–21, above. So even if the district court had erred, the error would not have been obvious. The district court could have reasonably viewed the statutory components as elements. The statutory components provide different mens rea requirements in separa te paragraphs, the pattern jury instructions refer to the separate statutory components as different crimes, and the indictment and factual basis for th e plea clarify that Mr. Wilkins was charged with a crime re quiring intentional or knowing conduct. Given these circumstances, the district court would not have committed an obvious error by characterizing the statutory components as elements. In the absence of an obvious mist ake, application of the modified categorical approach would not have constituted a plain error. The stipulation of facts show s that Mr. Wilkins pleaded guilty to the set of elements requiring intent ional or knowing conduct. So if the district court had erred in applying the modified categorical approach , the error would not have been plain. We thus affirm the sentence. Appellate Case: 19-5114 Document: 010110671644 Date Filed: 04/15/2022 Page: 23